Disciplinary procedure

Appointment of the Commissioner conducting the investigation is set in Regulation 149 of the Regulations of the Registry as follows:

“At the request of the Presidency, the Registrar shall assist in the appointment of the Commissioner.”

While article 33 (1-2) of the Code of Professional Conduct for counsel specifies the Commissioner’s function:

“1. A Commissioner responsible for investigating complaints of misconduct in accordance with this chapter shall be appointed for four years by the Presidency. The Commissioner shall be chosen from amongst persons with established competence in professional ethics and legal matters.

2. The Commissioner shall not be eligible for re-appointment. A Commissioner who is involved in an investigation when his or her mandate expires shall continue to conduct such an investigation until it is concluded.”

Art 1 of the Code of Professional Conduct for counsel provides a definition of Counsel,

“This Code shall apply to defence counsel, counsel acting for States, amici curiae and counsel or legal representatives for victims and witnesses practising at the International Criminal Court hereinafter referred to as “counsel”.”

Misconduct is defined in article 31 (a-c) of the Code of Professional Conduct for counsel as follows:

“Counsel commits misconduct when he or she:

(a) Violates or attempts to violate any provisions of this Code, the Statute, the Rules of Procedure and Evidence and the Regulations of the Court or of the Registry in force imposing a substantial ethical or professional duty on him or her;

(b) Knowingly assists or induces another person to commit any misconduct, referred to in paragraph (a) of this article, or does so through the acts of another person; or

(c) Fails to comply with a disciplinary decision rendered pursuant to this chapter.”

Filing a complaint of misconduct is described in article 34 (1-5) of the Code of Professional Conduct for counsel:

“1. Complaints against counsel regarding misconduct as referred to in articles 31 and 32 of this Code may be submitted to the Registry by:

(a) The Chamber dealing with the case;

(b) The Prosecutor; or

(c) Any person or group of persons whose rights or interests may have been affected by the alleged misconduct.

2. The complaint shall be made in writing or, if the complainant is unable to do so, orally before a staff member of the Registry. It shall identify the complainant and the counsel against whom the complaint is made and shall describe in sufficient detail the alleged misconduct.

3. The Registrar shall transmit the complaint to the Commissioner.

4. The Registrar may, on his or her own initiative, make complaints to the Commissioner regarding the misconduct referred to in articles 31 and 32 of this Code.

5. All complaints shall be kept confidential by the Registry.”

Preliminary procedures are set in article 37 (1-2) of the Code of Professional Conduct for counsel as follows:

“1. If the complaint filed meets the requirements in article 34 of this Code, the Commissioner shall forward it to counsel subject to the disciplinary procedure, who shall submit a response within sixty days from the date the complaint is forwarded.

2. The response shall indicate whether the alleged misconduct has been or is the subject of a disciplinary procedure before the national authority. If so, it shall include:

(a) The identity of the national authority deciding on the alleged misconduct; and

(b) A certified communication by the national authority stating the alleged facts that are the basis of the disciplinary procedure before it.”

Rights of counsel subject to the disciplinary procedure are stipulated in article 40 (1-5) of the Code of Professional Conduct for counsel as follows:

“1. Counsel subject to the disciplinary procedure shall be entitled to assistance from other counsel.

2. Counsel shall have the right to remain silent before the Disciplinary Board, which may draw any inferences it deems appropriate and reasonable from such silence in the light of all the information submitted to it.

3. Counsel shall have the right to full disclosure of the information and evidence gathered by the Commissioner as well as the Commissioner’s report.

4. Counsel shall be given the time required to prepare his or her defence.

5. Counsel shall have the right to question, personally or through his or her counsel, any person called by the Disciplinary Board to testify before it.”

Article 39 (1-5) of the Code of Professional Conduct for counsel describes the Disciplinary procedure in the Commissioner’s (initial) phase as follows:

“39(1) The Commissioner conducting the investigation may dismiss a complaint without any further investigation if he or she considers on the basis of the information at his or her disposal that the allegation of misconduct is unfounded in fact or in law. He or she shall notify the complainant accordingly.

39(2) Should the Commissioner consider otherwise, he or she shall promptly investigate the counsel’s alleged misconduct and decide either to submit a report to the Disciplinary Board or to bring the procedure to an end.

39(3) The Commissioner shall take into consideration all evidence, whether oral, written or any other form, which is relevant and has probative value. He or she shall keep all information concerning the disciplinary procedure confidential.

39(4) The Commissioner may try to find an amicable settlement if he or she deems it appropriate. The Commissioner shall report the outcome of any such efforts to reach an amicable settlement to the Disciplinary Board, which may take it into consideration. Any amicable settlement shall be without prejudice to the competence or powers of the Disciplinary Board under this Code.

39(5) The report of the Commissioner shall be submitted to the Disciplinary Board.”

Upon submission of the Commissioner’s report together with all gathered evidence to the Disciplinary Board, the Disciplinary Board conducts further thorough examinations and conveys a public hearing as specified in article 39 (6-8) of the Code:

“39(6) The Disciplinary Board hearing shall be public. However, the Disciplinary Board may decide to hold a hearing or parts of it in closed session, in particular to safeguard the confidentiality of information in the report of the Commissioner or to protect victims and witnesses.

39(7) The Commissioner and the counsel subject to the disciplinary procedure shall be called and heard. The Disciplinary Board may also call and hear any other person deemed useful for the establishment of the truth.

39(8) In exceptional cases, where the alleged misconduct is of such a nature as to seriously prejudice the interests of justice, the Commissioner may lodge an urgent motion with the Chamber before which the counsel who is the subject of the complaint is appearing, so that it may, as appropriate, declare a temporary suspension of such counsel.”

Article 41 (1-4) of the Code of Professional Conduct for counsel provides the delivering and notification of Decisions by the Disciplinary Board as follows:

“1. The Disciplinary Board may conclude the procedure finding no misconduct on the basis of the evidence submitted to it or finding that counsel subject to disciplinary procedure committed the alleged misconduct.

2. The decision shall be made public. It shall be reasoned and issued in writing.

3. The decision shall be notified to counsel subject to the disciplinary procedure and to the Registrar.

4. When the decision is final, it shall be published in the Official Journal of the Court and transmitted to the national authority.”

Article 42 (1-3) of the Code of Professional Conduct for counsel provides for Sanctions the following guidelines:

“1. When misconduct has been established, the Disciplinary Board may impose one or more of the following sanctions:

(a) Admonishment;

(b) Public reprimand with an entry in counsel’s personal file;

(c) Payment of a fine of up to €30,000;

(d) Suspension of the right to practise before the Court for a period not exceeding two years; and

(e) Permanent ban on practising before the Court and striking off the list of counsel.

2. The admonishment may include recommendations by the Disciplinary Board.

3. The costs of the disciplinary procedure shall be within the discretion of the Disciplinary Board.”

Articles 43.1 and 43.2 of the Code of Professional Conduct for counsel stipulate that:

“1. Sanctioned counsel and the Commissioner shall have the right to appeal the decision of the Disciplinary Board on factual or legal grounds.

2. The appeal shall be notified to the secretariat of the Disciplinary Board within thirty days from the day on which the decision has been delivered.”

Article 43.1 of the Code of Professional Conduct for counsel provides that

“Sanctioned counsel and the Commissioner shall have the right to appeal the decision of the Disciplinary Board on factual or legal grounds.”

The timeframe for filling an appeal is provided in article 43.2 of the Code of Professional Conduct for counsel as follows:

“The appeal shall be notified to the Secretariat of the Disciplinary Board within thirty (30) days from the day on which the decision has been delivered.”

According to the article 44.4 of the Code of Professional Conduct for counsel

“The Disciplinary Appeals Board shall decide on the appeal according to the procedure followed before the Disciplinary Board.”  

 

The Disciplinary Board:

Two permanent members:

1. Mr. LAROCHELLE, Philippe, (Canada) (2022-2026)
2. Mr. ASSELINEAU, Vincent (France) (2022-2026)
   
   Mr. ROSENTHAL, Etienne, (France) (2019-2025) assumes his functions upon expiration of Ms VAN DER VOORT, Karlijn term (Art 36.7 of the Code of Professional Conduct for counsel (the Code))
   Ms. RABESANDRATANA, Elisabeth (France) (2025-2029) assumes her functions upon expiration of Mr. ROSENTHAL, Etienne term (Art 36.7 of the Code)

One alternate member:

1. Mr. EDWARDS, Iain Frederick (United Kingdom, Canada) (2022-2026)

The Disciplinary Appeals Board:

Three judges taking precedence under regulation 10 of the Regulations of the Court and subject to any clause of exclusion as set forth by Article 44(4) (a) of the Code.
 
Three members elected by all counsel entitled to practice before the Court:

1. Mr. LEVY, Michel (France) (2022-2026)
2. Mr. TSILONIS, Victor (Greece) (2022-2026)

One alternate member:

1. Mr. GUERRERO AGUIRRE, Freddy Gustavo (Spain, Peru) (2022-2026))

The Presidency of the International Criminal Court appointed the Commissioner responsible for investigating complaints within the scope of disciplinary procedures under Chapter 4 of the Code, and Alternate Commissioner to i) replace the Commissioner if and when she is unable to act, and ii) act as an informal interlocutor to the Commissioner in order to support her in the performance of her duties.
 
The Commissioner:
Ms. MABILLE Catherine (France) (2023-2027)
 
Alternate Commissioner:  
Mr. NDIAYE Assane (Senegal) (2023-2027)